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Albert v. Perdue

United States District Court, District of Columbia

September 20, 2019

SONNY PERDUE, Secretary, U.S. Department of Agriculture, Defendant.



         Plaintiff Lawrence Albert is a white, Jewish man over sixty years old. After an almost-40-year career at the United States Department of Agriculture, Albert brought this suit, alleging a host of discriminatory and retaliatory actions by his supervisors. Chiefly, he claims that his non-selection for a grade 14 position violated Title VII and the Age Discrimination in Employment Act. Albert further alleges that he was subjected to a hostile workplace at USDA and that reduced responsibilities, lower-than-Outstanding performance evaluations, and a six-month assignment in a different division violated his rights. Defendant Sonny Perdue, Secretary of Agriculture, now moves for summary judgment on all counts, contending that no reasonable jury could find that Albert suffered discrimination or retaliation or was subjected to a hostile environment. Concluding that only Plaintiff’s non-selection and reduced-responsibilities claims survive, the Court will grant in part and deny in part Defendant’s Motion.

         I. Background

         As it must at this stage, the Court sets out the facts here in the light most favorable to Plaintiff. See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Although more details of particular claims appear in the Analysis, infra, the Court will lay out the general background here. Albert joined USDA in 1980, where he began his career as a Food Program Specialist. See Def. Mot., Statement of Material Facts (SMF), ¶ 4. After holding that position for 14 years, he completed a detail as an Equal Employment Specialist in the Department’s Civil Rights office. Id., ¶¶ 4–5. That detail became permanent, and Albert continued serving in that capacity until 2000. Id., ¶ 6. Later that year, USDA assigned him to a detail in its Conflict Prevention and Resolution Center (CPRC), a predecessor office to the Early Resolution and Conciliation Division (ERCD) within the Office of the Assistant Secretary for Civil Rights (OASCR). Id., ¶¶ 6–7. While on detail there, Albert accepted a permanent position. Id., ¶ 7. In addition to these roles, Plaintiff has served as an Early Resolution and Conciliation Specialist, GS–13, through the time he filed his Complaint. Id., ¶ 3. In that role, Albert assisted employees who filed or were considering filing Equal Employment Opportunity complaints and are seeking Alternative Dispute Resolution. See Def. Mot., Exh. 1 (First Deposition of Lawrence Albert) at 15; Compl., ¶ 18.

         In Albert’s view, the last eight years of his nearly four-decade-long tenure with USDA have been plagued by substantial work-related mistreatment. See Compl., ¶¶ 87–134. He points to his reduced workload, non-stellar performance evaluations, and a six-month assignment in a different division. Id. He also takes issue with Defendant’s decision not to select him for a vacancy in the position of Dispute Resolution Specialist, GS–14. Id. So Plaintiff filed two discrimination complaints with the Equal Employment Opportunity Commission - one in 2012, the other in 2014 - alleging that Defendant discriminated against him on the basis of his race, religion, sex, prior EEO activity, and age. See Def. Mot., Exh. A (First Report of Investigation (ROI)) at 23; Exh. B (Second ROI) at 2, 89. Albert initially sought a hearing from an administrative judge but rescinded this request to allow the agency to reach a final decision on his claim. See Compl., ¶¶ 5–6. But the agency did not do so within the allotted 40-day timeline, as set out under applicable law. See 29 C.F.R. § 1614.110(b); Compl., ¶ 8.

         As a result, on August 3, 2017, Plaintiff filed suit in this Court, asserting eight causes of action. See Compl., ¶¶ 87–134. He alleges that Defendant violated Title VII and the ADEA by generally discriminating against him, harassing him, and creating a hostile work environment because of his race (Count I), color (Count II), sex (Count III), religion (Count IV), prior EEO activity (Count V), and age (Count VI). Plaintiff also separately maintains that his non-selection was the result of the same forms of discrimination in violation of Title VII (Count VII) and the ADEA (Count VIII). Defendant has now moved for summary judgment on all counts.

         II. Legal Standard

         Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         When a motion for summary judgment is under consideration, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

         The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in its favor. See Laningham v. Navy, 813 F.2d 1236, 1241–42 (D.C. Cir. 1987). In light of this requirement, and pursuant to Local Civil Rule 7(h) and Federal Rule 56(c), the Court, in resolving summary-judgment motions, “assume[s] that facts identified by the moving party in the statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” Local Civ. R. 7(h)(1).

         III. Analysis

         In considering Defendant’s Motion for Summary Judgment, the Court first addresses the heart of the suit - namely, Albert’s non-selection counts. It next considers his hostile-work-environment claims and concludes with the remaining discrete claims of discrimination and retaliation.

         A. Non-Selection

         In 2014, USDA advertised two vacant Dispute Resolution Specialist, GS–14, positions. See Second ROI at 89. Cyrus Salazar - Director of ERCD and Albert’s immediate supervisor - convened a panel to interview and assess the pool of candidates seeking these positions. See Def. Mot., Exh. 5 (Deposition of Cyrus Salazar) at 12, 77–79. In assembling his panel, Salazar followed the guidance of the National Finance Center, which provides services to federal agencies. Id. at 73, 77–79; SMF, ¶ 30. To wit, Salazar selected a diverse panel comprised of David King (black, over the age of 40), Alicia Rodriguez (white, Hispanic, Catholic, over the age of 40), and William Scaggs (white, Methodist). See Def. Mot, Salazar Depo. at 77–79; SMF, ¶ 30. The panel, in turn, interviewed seven candidates, including Plaintiff. See Def. Mot., Salazar Depo. at 12; Reply, Exh. D (Panelists’ Interview Information) at 246, 255, 264. Salazar then reviewed the panelists’ scores and selected Anita Pitchford and Edward Profit - the two highest-scoring candidates - for the vacant positions. See Def. Mot., Salazar Depo. at 157; see also Opp. at 13. Both Pitchford and Profit are black, non-Jewish, and younger than Albert. See Opp., Exh. 26 (Anita Pitchford Affidavit) at 274; Opp., Exh. 25 (Edward Profit Affidavit) at 193; Opp. at 13.

         In seeking summary judgment here, Defendant states that Albert did not gain the position because of his poor performance on the interview. See Def. Mot. at 15–16; Reply at 3. Plaintiff, on the other hand, attributes his non-selection to discrimination on the basis of his race, color, sex, religion, and age, as well as retaliation for having filed EEO complaints. See Compl., ¶¶ 87–134.

         1. Legal Framework

         Title VII makes it unlawful for employers “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment[] because of such individual’s race, color, religion, [or] sex.” 42 U.S.C. § 2000e–2(a)(1). It also forbids retaliation against employees who engage in protected EEO activity. Id. § 2000e–3(a). The ADEA likewise prohibits discrimination against an employee on the basis of age. See 29 U.S.C. § 623(a)(1). Individuals 40 years of age and older are included in the protected class. Id. § 631(a).

         In weighing a discrimination or a retaliation claim under Title VII or the ADEA, the Court must follow the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). See Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010) (applying framework to ADEA claims); Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003) (applying framework to Title VII claims). Under this framework, the plaintiff carries the initial burden of establishing a prima facie case of discrimination or retaliation. See 411 U.S. at 802 (applying framework to discrimination claim); see also Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (applying framework to retaliation claim). To pass that hurdle, she need only show that “(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action give rise to an inference of discrimination.” Czekalski, 475 F.3d at 364 (internal quotation marks and citation omitted); see also Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (requiring plaintiff to declare that he engaged in protected activity under Title VII to establish prima facie retaliation claim).

         Next, the defendant may rebut that prima facie showing with evidence of a “‘legitimate, nondiscriminatory reason’ for its action.” Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006) (quoting McDonnell Douglas, 411 U.S. at 802). Finally, if the defendant has produced such evidence, then the plaintiff must show that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

         When, however, “an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, ” the Court “need not-and should not-decide whether the plaintiff actually made out a prima facie case” because it should focus only on the third part of the McDonnell Douglas analysis. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). But, as our Circuit recently held, this “Brady shortcut” does not “relieve the employer of its burden . . . ‘to articulate a legitimate, nondiscriminatory reason for its action.’” Figueroa v. Pompeo, 923 F.3d 1078, 1087 (D.C. Cir. 2019) (quoting Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016)).

         With that windup, the Court will now turn to Albert’s Title VII and ADEA claims concerning his non-selection for the position of ADR Specialist, GS–14. See Compl., ¶¶ 87– 134. Because such non-selection is clearly an adverse employment action, see Kalinoski v. Gutierrez, 435 F.Supp.2d 55, 69 (D.D.C. 2006), the Court need not perform any further threshold analysis of whether he has established a prima facie case of discrimination. See Brady, 520 F.3d at 494. It will instead examine the sufficiency of Defendant’s nondiscriminatory explanation for Albert’s non-selection and next decide whether a jury could find this pretextual.

         2. Legitimate, Nondiscriminatory Explanation

         To justify its non-selection, Defendant maintains that Albert was not qualified for the GS-14 position based on his interview performance. In assessing whether this is a legitimate, nondiscriminatory reason, the Court considers four factors: (1) whether the employer produced evidence that would be admissible at the summary-judgment stage; (2) whether the factfinder, if it believes the evidence, could reasonably “find that the employer’s action was motivated by a nondiscriminatory reason”; (3) whether the employer’s explanation is “facially credible in light of the proffered evidence”; and (4) whether the employer’s evidence presents a “clear and reasonably specific explanation” such that the employee has “a full and fair opportunity to attack the explanation as pretextual.” Figueroa, 923 F.3d at 1087–88 (internal quotation marks and citations omitted). The Court will address each factor in turn.

         First, Defendant has produced evidence that may be considered at summary judgment, including the notes of each panelist and his or her scores and ratings for each of the seven applicants. See, e.g., Panelists’ Interview Info. at 245–71. The Government has also presented deposition testimony from Salazar - the selection official who designed the interview process - and ...

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